1
EXHIBIT 10.5
ASSIGNMENT OF MEMBERSHIP INTEREST, DATED DECEMBER 6, 1997 BETWEEN
AGRICULTURAL INNOVATION & TRADE, INC. AND TWIN GARDEN SALES, INC.
2
ASSIGNMENT OF MEMBERSHIP INTEREST
THIS ASSIGNMENT OF MEMBERSHIP INTEREST ("Assignment") is made and entered into
by and among Agricultural Innovation & Trade, Inc., a California Corporation,
with its principal place of business at 3241 Somis Road, Somis, California
93066, ("Assignor") and Twin Garden Sales, Inc., an Illinois Corporation, with
its principal place of business at 23017 Route 173, Harvard, IL 60033,
("Assignee").
RECITALS
a. Assignor is a Member of NewCornCo, LLC, a Delaware Limited
Liability Company ("Company") and owns the Participation
Percentage in a forty-nine percent (49%) interest
("Participation Percentage") of the Company.
b. The Company has entered into an agreement wherein the Company
will purchase certain assets from Assignee. As payment for
those assets, Assignor has agreed to assign to Assignee an
undivided fifteen percent (15%) in the Company.
c. Assignor desires to sell, transfer and convey to Assignee
certain Participation Percentage rights in the Company.
d. Assignee desires to purchase and acquire the Participation
Percentage rights from Assignor.
NOW, THEREFORE, this Assignment is made in consideration of the
premises, warranties, and mutual covenants set forth herein; and each of the
parties to this Assignment agrees as follows:
1. ASSIGNMENT OF MEMBERSHIP INTEREST. For value received, the receipt
and sufficiency of which are hereby acknowledged, the Assignor hereby sells,
transfers, conveys, and assigns to the Assignee:
a. An undivided fifteen percent (15%) Participation Percentage
in the Company, together with that proportionate share of Assignor's capital
account that the assigned Participation Percentage bears to all of the
Participation Percentage owned by Assignor before this Assignment.
b. A proportionate share of Assignor's rights to receive
proceeds or benefit of any indemnity, warranty, or other payments with respect
to the Company's operating agreement.
c. A proportionate share of Assignor's rights to perform under
the Company's
3
operating agreement, to compel the performance of others, and otherwise exercise
all remedies of a Member.
2. EFFECT OF ASSIGNMENT. From and after the effective date hereof the
portion of the profits or losses attributable to the Participation Percentage
and the portions of all other items of income, gain, loss, deduction, or credit
allocable to the Participation Percentage on or after such date shall be
credited or charged, as the case may be, to the Assignee and not to the
Assignor.
a. The Assignee shall be entitled to all distributions or
payments in respect to the Participation Percentage made on or after the
effective date hereof, regardless of the source of those distributions or
payments or when the same was earned or received by the Company.
b. Nothing in this Assignment will affect the allocation to
the Assignor of profits, losses and other items of income, gain, loss,
deduction, or credit allocable to its Participation Percentage and attributable
to any period before the effective date of this Assignment or any distribution
or payments made to the Assignor in respect of Assignor's Participation
Percentage before that date.
3. ACCEPTANCE. The Assignee hereby accepts from the Assignor the
Participation Percentage and agrees to be bound by all of the terms of the
Company's operating agreement.
4. REPRESENTATIONS OF ASSIGNOR. The Assignor represents to the Assignee
that:
a. This Assignment constitutes legal valid binding obligation
of Assignor, enforceable against the Assignor in accordance with its terms and
has been duly executed and delivered by Assignor;
b. The Assignor is the sole owner of the Participation
Percentage being transferred to the Assignee; and
c. The Assignor has good title to the Participation
Percentage, free and clear of any liens, claims, encumbrances, security
interests, or options.
d. The execution, delivery and consummation of the Assignment
will not directly or indirectly contravene, conflict with, or result in a
violation of any provision of the Organizational Agreement, Operating Agreement,
or any other resolution or agreement of the Company.
e. Contemporaneously herewith, Assignor shall cause NewCornCo,
LLC to execute representations and warranties in form set forth in the exhibit
attached hereto.
5. FUTURE COOPERATION. The Assignor and the Assignee mutually agree to
cooperate at all times from and after the date hereof with respect to any of the
matters described herein, and to
2
4
execute such further deeds, bills of sale, assignments, releases, assumptions,
notifications, or other documents as may be reasonably requested for the purpose
of giving effect to, evidencing or gibing notice of the transaction evidenced by
this Assignment.
6. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
7. MODIFICATION AND WAIVER. No supplement, modification, waiver or
termination of this Assignment or any provisions hereof shall be binding unless
executed in writing by all parties hereto. No waiver of any of the provisions of
this Assignment shall constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
8. COUNTERPARTS. Any number of counterparts of this Assignment may be
executed. Each counterpart will be deemed to be an original instrument and all
counterparts taken together will constitute one agreement.
9. GOVERNING LAW. This Assignment will be interpreted and governed by
the laws of the State of Delaware.
10. GENDER. All pronouns used herein shall include the neuter,
masculine, or feminine. Each term appearing in this Assignment with initial
capitalization and not defined herein shall have the meaning ascribed to it in
the Membership Agreement.
11. TIME. Time is of the essence of this Assignment.
IN WITNESS WHEREOF, the parties hereto have subscribed to this
Assignment on 12/6/97.
Assignor:
Agricultural Innovation & Trade,
Inc., a California Corporation
By: /s/ Jim Roberts
3
5
James Roberts, Vice-President
ASSIGNEE:
Twin Garden Sales, Inc., an Illinois
Corporation
By: /s/ Mark Hayes
Mark Hayes
Consent:
The undersigned, being all of the Members of the Company, hereby
consent to this Assignment and waive their right of first refusal under the
Operating Agreement.
Dated: 12/6/97 EPL Technologies, Inc.,
a Colorado Corporation
By: /s/ Paul L. Devine
Paul L. Devine, President
Dated: 12/6/97 Agricultural Innovation & Trade, Inc.,
a California Corporation, Member
By: /s/ James Roberts
James Roberts, Vice-President
Dated: 12/6/97 Twin Garden Sales, Inc.,
An Illinois Corporation
By: /s/ Mark Hayes
Mark Hayes, President
4